A new network of lawyers, rights activists and those exonerated in terrorism-related cases dedicates itself to fight for compensation and rehabilitation of those wrongly framed and prosecuted
By Ajith Pillai
Imagine a scenario where you are picked up by the police, framed as a terrorist or a spy, kept in custody for several months and then sentenced to 10 years in prison. What do you do? You either fight grittily to prove your innocence or just give up and serve your jail term.
But should you prove that the charges against you were false and walk out of prison as a free man, say, after seven years, where does the harrowing experience leave you? Does the state compensate you or help in your rehabilitation? Unfortunately, it does not. What’s worse, it expects you to rest content that your honor has been restored.
It is to fight for the rights of the innocents and those exonerated for the crimes they were charged with that the India chapter of Innocence Network was launched in Delhi on October 2 on Gandhi Jayanti. The initiative is a collective effort of a group of innocents from across the country convicted of terrorism-related crimes and several rights activists and lawyers. Their aim: to campaign for the rehabilitation of innocents who have been wrongly convicted, ensuring that they are adequately compensated and push for legal reforms to ensure punishment for those who wrongly implicated them. While a sizeable number of those wrongfully charged are Muslims, members of other communities too have been victimized (see box).
To mark the launch of the Network, a peoples’ tribunal headed by Justice AP Shah, former chief justice of Delhi High Court, heard the testimonies of a cross-section of those acquitted of terrorism-related crimes. The verdict of the eight-member jury, which included a filmmaker, academics, legal experts and social scientists, was unanimous—that the innocents and their families need to be compensated and rehabilitated.
The testimonies that unfolded during the tribunal’s hearings were illustrative as well as shocking. Take the trauma of Mohammed Nisaruddin who spent 23 years in prison before the case against him was dismissed by the Supreme Court on May 11, 2016. He was picked up by the Hyderabad police on January 15, 1994, though shown as arrested on February 28, 1994. Nisaruddin was charged with planting bombs in trains on the intervening night of December 5-6, 1993. The case fell apart because it relied on confession extracted under duress from the accused. Nisaruddin recalls his torture in custody: “I was chained and kept standing for four days. I was deprived of sleep. In such a state you will sign anything they tell you to sign.” Nisaruddin also alleges he was kept in isolation for 73 days.
Or the curious case of Mohammed Amir Khan who spent 14 years in jail before being proven innocent. He was implicated in several acts of terrorism in Delhi, UP and Haryana and was labeled as the India link to Pakistan/Bangladesh terror groups. In all, 19 cases were slapped against him and were all dismissed because of lack of evidence. Much of the evidence against him was fabricated and police officials gave false testimonies in court to shore up their case.
Take the trauma of Mohammed Nisaruddin who spent 23 years in prison before the case against him was dismissed by the Supreme Court on May 11, 2016. He was picked up by the Hyderabad police on January 15, 1994, though shown as arrested on February 28, 1994. Nisaruddin was charged with planting bombs in trains on the intervening night of December 5-6, 1993.
Amir finally won his case. But he was left scarred. “Things change after 14 years. When I was arrested in 1998, I was 21. I left behind a happy family. During my years in prison, my family went through hell, my father died and my mother became paralyzed. Everything we owned had to be sold to secure my release,” he recalled.
Many of the stories that unfolded spoke of extreme torture—being blindfolded for several days and then being taken out into the blazing afternoon sun, private parts being electrocuted and being deprived of food and water.
You could call these typical examples of the abject failure of the criminal jurisprudence system or the result of shoddy and biased police investigations. But the end result is the same—miscarriage of justice. Indeed, there have been several instances of citizens being arrested, prosecuted and sentenced in heinous anti-national crimes only to be released after several years in prison by the higher courts for lack of any credible evidence or witnesses. While in some cases, justice was finally delivered, what about the impact on those who were wrongfully incarcerated?
Speaking on the sidelines of the proceedings of the tribunal, Justice Shah told India Legal: “After hearing all the heart-rending stories, one can only conclude that something ought to be done. Those who have been wrongfully prosecuted deserve better. A scheme can be immediately devised for their rehabilitation and compensation because framing a law for this purpose may take several years. I must also add that we have a very brutal police force and the guilty officers ought to be charged and punished. I am equally unhappy with sections of the judiciary for entertaining cases without any merit.”
While giving his broader conclusions after the tribunal hearings, Justice Shah also pointed out that the judiciary had failed to provide any compensatory relief for those declared innocent because there is currently no law to facilitate that. This, despite India being a signatory of the International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty adopted by the UN General Assembly in 1966, and in force from March 1976.
Innocence Network’s chapter in India draws its inspiration from a similarly named organization in the US and in other countries which provide pro bono legal and investigative services to individuals seeking to prove their innocence in crimes for which they have been convicted and supporting the exonerated after they are freed.
Article 14(6) of the ICCPR addresses wrongful conviction and compensation. To quote: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
There is, however, no law to back the ICCPR guidelines in India. The CrPC provides for only limited compensation under special circumstances. Prosecutions under the Unlawful Activities (Prevention) Act, the Official Secret Act (OSA) and earlier, under POTA and TADA, which deal with crimes directed against the integrity and sovereignty of India, are not covered by it.
The only recourse for those proven innocent is to sue for damages—a long-drawn legal process that most would consider as an unviable option.
Which is why Professor GS Bajpai, registrar of National Law University, Delhi, and a member of the jury, emphasized the need not only to set in place a system to provide relief for those declared not guilty but also push for legislation that provides the legal framework for compensation.
“I think a new law is required so that the innocents are rehabilitated and at the same time, there should be provisions for punishing those who are guilty of foisting false cases on innocent citizens.”
The idea of starting the Innocence Network in India originated in the Quill Foundation, a Delhi-based research and advocacy group founded a year ago. It currently works primarily on the study of terror prosecutions and their civil and human rights implications in India. The idea of rehabilitation and compensation for victims of terror prosecutions was always on the agenda and the formation of the Innocence Network is hoped to further push the case.
Innocence Network’s chapter in India draws its inspiration from a similarly named organization in the US and in other countries which provide pro bono legal and investigative services to individuals seeking to prove their innocence in crimes for which they have been convicted and supporting the exonerated after they are freed.
Sharib Ali, program head of Quill Foundation, said: “We are not an NGO but an affiliation of concerned people. The idea was to establish an innocence collective similar to the one in the US and other countries. Such movements with a thorough understanding of the justice framework as well as advocacy methods have yielded good results. We would like to push for reforms in the current judicial system in order to ensure that the miscarriage of justice can be minimized. At the same time, we hope to work on initiatives to support the people acquitted in terror cases in order to rehabilitate them.”
But why this focus on terror cases alone—shouldn’t wrongful prosecutions of all kinds be highlighted? Nisaruddin, one of those exonerated, felt they should. He said: “What is important is that through the Innocence Network, we campaign for laws which bring an end to witch-hunting of people, whether they are Muslims, Dalits or other oppressed communities. We need to ensure that a law is introduced where confession statements secured by the police are not taken into cognizance by the court.”
But Justice Shah was of the view that terror cases cannot be looked at and equated with other prosecutions and that the police role has to be examined carefully: “There is a need to make police accountable for wrongful investigations in terror cases. Acquittals in terror cases are different from acquittals in other criminal cases. It has been seen that in terror cases, the police misleads the investigation deliberately, and thus, it is important for courts to initiate proceedings against them and hold them accountable,” he said.
The Innocence Network will soon be drafting a report based on the findings of the peoples’ tribunal and initiate a follow-up action. The organization hopes that putting public pressure on the government will slowly bring about change and result in framing of new laws that will compensate and rehabilitate those accused falsely prosecuted in heinous crimes against the state.
But the final word on this came from Wahid Shaikh, acquitted in the 7/11 Mumbai train blasts case who deposed before the tribunal: “Who else is responsible for us spending years in jail but the state and the police. They have wrongfully implicated us. They should compensate us for all that we—and our families—have gone through. There is also a need to ensure strict action against those officials who charged innocents in cases they were not clearly involved in.”
For people like Shaikh, injustice still prevails….
Lead picture: Thousands of persons in India are facing trial due to wrongful detention in terror cases. Photo: UNI